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EEOC Disclosures of Employers' Confidential Information

When employers respond to discrimination charges filed with the Equal Employment Opportunity Commission (EEOC), they often are concerned about whether the information that they provide will be kept confidential, or whether the EEOC will share the information with the person filing the charge, or perhaps with the employer's competitors. The EEOC's current disclosure policy is that it can disclose any information submitted by an employer without first notifying the employer and providing it an opportunity to object.

In a recent case, Venetian Casino v. EEOC (D.C. Cir. June 27, 2008), the U.S. Circuit Court of Appeals for the District of Columbia Circuit put some restraints on the EEOC in this area. In that case, the employer sought a court injunction to prevent the EEOC from disclosing certain confidential information without providing the employer prior notice and an opportunity to object. The district court dismissed the case, but the appeals court sent the case back to the district court to enter an injunction prohibiting the Commission from disclosing Venetian's confidential information pursuant to the EEOC's current disclosure policy.

The court concluded in the Venetian Casino case that the EEOC did not have adequate safeguards to ensure that employers' trade secrets would not be disclosed without prior notification and an opportunity to object. The court enjoined the EEOC from disclosing the Venetian's confidential information without first giving Venetian prior notice. The court also stated, however, that the injunction could be dissolved if the EEOC better explained how changes to its disclosure policy would offer protections to employers' confidential information in appropriate cases. The likely result of the Venetian Casino case will be that the EEOC will modify its policies and afford employers notice and a chance to respond before the EEOC releases information that the employer designates confidential.

What should employers do? Employers should assume that the information they submit to the EEOC will not be treated by the EEOC as being confidential if the employer does not clearly identify the information as being confidential. Even if the employer designates particular information as being "confidential", this may not be enough to assure that the EEOC will provide notice before disclosing the information to those who ask for it under the Freedom of Information Act (FOIA). Because the EEOC does have a right to obtain potentially relevant from employers in discharging its duties to investigate allegations of employment discrimination, through court subpoena if necessary, employers cannot freely withhold potentially relevant information, even if it is confidential.

Employers should provide the EEOC explicit and prominent notice that particular information is deemed confidential by the employer, explain how disclosure of such information by the EEOC would cause substantial harm to the employer's business or competitive position, and request that the EEOC provide the employer prior notice before disclosing the information to others. Hopefully, the EEOC will implement better disclosure policies as a result of the Venetian Casino decision, better safeguarding employers' interests in protecting their confidential information.

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